Lawmaker privilege an issue in Arkansas LGBT rights case

Little Rock, Ark. — A court fight over Arkansas' ban on local anti-discrimination protections for LGBT people has spawned a new battle over just how much lawmakers' statements and documents can be shielded from litigation.

The Arkansas Supreme Court last week halted a request by defenders of Fayetteville's anti-discrimination ordinance to depose two legislators and to seek records related to a 2015 law banning local protections for lesbian, gay, bisexual and transgender people. Justices had ruled earlier this year that Fayetteville's ordinance violated the state law, but didn't rule on whether the ban is constitutional since that issue wasn't addressed by the lower court.

That broader dispute has now been sidelined by a fight over whether lawmakers should be forced to testify about their deliberations. Justices said they'll take an appeal from lawyers for the state, who argue the depositions will violate long-standing protections. The attorney general's office asked for the stay so justices can review whether lawmakers can be required to hand over documents to and be deposed by attorneys for Fayetteville and the American Civil Liberties Union.

The state argues a Washington County judge "eviscerated deeply rooted legislative privilege principles" by denying its motion to halt subpoenas in the case.

"As a result, members of the General Assembly must now answer deposition questions about their legislative activities and turn over communications between legislators, staff and constituent contacts, draft legislation, and everything except floor statements demonstrating individual legislators' motives for supporting legislation," Rutledge's office told the court in a filing last week. "No American court has ever authorized such a sweeping review."

The leaders of the House and Senate and members of the Legislative Council, the lawmakers' main governing body when the Legislature isn't in session, have also chimed in to ask the court to halt discovery in the case. They argue that allowing it to continue could threaten future debates among lawmakers.

"Requiring involuntary disclosure of confidential communications and documents, through improper application of the legislative privilege, would chill open discussions and communications utilized by the members, adversely impact the decision making of the General Assembly, and contravene the historic privileges upon which they rely in conducting their business," lawmakers said in their filing.

Attorneys for the city of Fayetteville and the ACLU say the move by the state is premature since it hasn't been ordered to produce any documents yet and note that the lawmakers who sponsored the ban on anti-discrimination ordinances can still assert privilege during their depositions.

"This does not come close to overriding the public's stake in open access to government, much less the public interest in good-faith dispute resolution at the early stages of litigation," the ACLU of Arkansas, which represents LGBT residents who have intervened in the case, said in a filing last week.

The ACLU and Fayetteville argue Arkansas is trying to get the courts to grant the Legislature a blanket privilege that protects lawmakers from producing documents or testifying about legislation. It's a move that could hobble efforts to challenge the 2015 law, which prohibits cities from enacting protections not covered by state law. Arkansas' civil rights law doesn't cover sexual orientation or gender identity.

Barring the depositions and document requests could hobble a key argument opponents of the state law have made: that the Legislature was motivated by animus against LGBT people, not their stated goal of having uniformity among anti-discrimination protections across the state.

Under Arkansas' argument, "a legislator could tweet to his followers months before a legislative session: 'Regardless of how Fayetteville City Council votes tonight AR legislature will pass law in Feb/March to nullify this type of ordinance,' and be privileged from even admitting this was his tweet," Fayetteville said in its filings last week.

The dispute over Arkansas' ban on local LGBT protections is far from over, but where the court draws the line of legislative privilege could have ramifications far beyond this case.